Landlord asserted Section 8 tenant Chapple's conduct constituted a nuisance in this holdover proceeding. The 10 day notice to terminate included descriptions of incidents, and a prior eviction proceeding based on similar nuisance allegations. Chapple moved for dismissal alleging petitioner failed to serve DHCR with the predicate notice and petition. Alternatively, Chapple sought discovery on two affirmative defenses. The court noted where the public housing authority (PHA) was not NYCHA, there was no prescribed method for serving it a copy with an owner eviction notice. Also, there was no requirement proof of notice to the PHA be filed with the court in the same manner and time as the filing of proof of service of the petition on tenant. Landlord asserted, and provided copies of the predicate notice and petition on DHCR, seeking they be timely filed nunc pro tunc. The court denied tenant's motion to dismiss, but as tenant established ample need for discovery to obtain information necessary to prepare her case against landlord's claims of nuisance, it allowed deposition of petitioner's managing agent.

Full Case Digest Text

Recitation, as required by CPLR 2219(A), of the papers considered in the review of Respondent’s Motion to Dismiss or for Discovery and Petitioner’s Cross-Motion to Deem Affidavits of Service Timely Filed on the DHCR nunc pro tunc:

Upon the foregoing papers, Respondent’s motion and Petitioner’s cross-motion, consolidated herein for determination, are decided as follows.

PROCEDURAL HISTORY AND BACKGROUND

This is a holdover proceeding based on allegations that, since May 2016 and on a continuous basis thereafter, Respondent has hosted frequent “loud, large parties” with guests and visitors observed in the building’s hallways and stairwells engaging in various specified types of “anti-social, disruptive, destructive, dangerous and/or illegal behavior” constituting a nuisance and an objectionable tenancy in violation of Respondent’s lease and Petitioner’s Building Rules and Regulations. The predicate “10 Day Notice to Terminate”, a copy of which is attached to the Petition and incorporated therein by reference at paragraph five, includes descriptions of four specific incidents as well as a prior eviction proceeding based on similar allegations of nuisance behavior that was settled with a probationary agreement that ran through February 2016.

The Petition describes the premises as “a fair market apartment” for which Respondent receives a Section 8 rent subsidy administered by the New York State Division of Housing and Community Renewal (DHCR). Both the Petition and the predicate notice assert that, “DHCR is being notified of this proceeding pursuant to 24 CFR 982.310.”

Both parties appear by counsel. Respondent served and filed a Verified Answer and then moved to dismiss based on her First Objection in Point of Law: Petitioner’s alleged failure to serve the DHCR with copies of the predicate notice and Notice of Petition and Petition as required by 24 CFR §982.310 (e)(2)(ii) and 8(a) and 8(g)(2) of the “Tenancy Addendum” to the Housing Assistance Payments (“HAP”) contract between Petitioner and the DHCR. As the factual basis for this claim, Respondent points to the affidavits of service in the court file which do not mention service on the DHCR.

In the alternative, Respondent seeks discovery under CPLR §408 on two of her affirmative defenses: defective predicate notice due to lack of the requisite specificity (Second Affirmative Defense); and the claim that “the events described in the Notice of Termination did not occur” (Third Affirmative Defense).1 Respondent’s discovery request is comprised of two proposed Notices of Deposition: one seeks to take the deposition of an unspecified agent of Petitioner and production at that deposition pursuant to CPLR R 3111 of a witness list as well as documents and videotapes or other recordings relating to Petitioner’s claims against Respondent, which she refutes; the other seeks to take the deposition of Petitioner’s managing agent Michael Abreu.

In opposition and by cross-motion, Petitioner asserts that it did serve copies of its predicate notice and Petition on the DHCR, provides copies of its affidavits of service on the DHCR and asks that they be deemed filed timely nunc pro tunc under CPLR §§2001 and 2004.

In opposition to Respondent’s discovery request Petitioner points to “the plethora of factual information contained within the notices”. Affirmation in Opposition at 28. Petitioner argues that Respondent has not established “ample need”, that the motion is not supported by Respondent’s sworn affidavit, that Respondent’s claim that she is not in possession of the information she needs to defend against this proceeding is “undermined by the fact that Respondent has lived in the subject premises for 13 years and that the conduct alleged herein all occurred inside the apartment,” id. at 21, and that Respondent will have a full opportunity “to cross examine the Petitioner’s witnesses, question their veracity and attack any documentary evidence which they may seek to introduce” at trial. Id. at 29.

In opposition to Petitioner’s cross-motion and on reply Respondent’s counsel argues that Sections 733(1) and 735(2) of the New York State Real Property Actions and Proceedings Law (RPAPL) require Petitioner to have filed proof of service on the DHCR when it filed proof of service on Respondent to demonstrate compliance with 24 CFR §982.310(e)(2)(ii).

Respondent further argues that this is a “fatal error” which cannot be overlooked or corrected nunc pro tunc and that, in any event, Petitioner has still failed to provide proof of service of the Notice of Petition (as opposed to the Petition) on the DHCR. Regarding discovery, Respondent argues that no affidavit is required given that the motion is supported by her Verified Answer, and that she has shown the requisite “ample need” to review the requested information in advance of trial.

In reply, Petitioner’s counsel argues that 24 CFR §982.310(e)(2)(ii) does not contain a filing requirement; rather, it only requires owners to provide notice of a pending eviction proceeding to the public housing authority (PHA), in this case the DHCR, which Petitioner did. Further, RPAPL §§733(1) and 735(2) relate solely to service on respondents, and filing proof of such service with the court, of the notice of petition and petition to obtain personal jurisdiction.

Dismissal

Where a tenant’s rent is subsidized by the federal Section 8 Housing Choice Voucher Program, 24 CFR §982.310(e)(2)(ii) requires an owner who is terminating a tenancy to “give the PHA [public housing authority] a copy of any owner eviction notice to the tenant.” An “owner eviction notice” is defined as “a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction action.” 24 CFR §982.310(e)(2)(i).3 Failure to give the requisite notice to the PHA notice is certainly a defense which, if proven at trial or on a motion to dismiss or for summary judgment, could result in the dismissal of the proceeding. See, e.g., FAC Renaissance HDFC v. Vega (55 Misc3d 1210[A], 2017 NY Misc LEXIS 1352, 2017 WL 1369899 [Civ Ct Kings Co 2017])(granting tenant’s motion to dismiss holdover proceeding under CPLR 3211[a][7] due to landlord’s failure to give notice of the proceeding to the PHA, New York City Department of Housing Preservation and Development [HPD]); Sam Burt Houses, Inc v. Smith (NYLJ 1202731567320 [Civ Ct Kings Co 2015])(granting motion of tenant with Section 8 subsidy administered by HPD to dismiss nonpayment proceeding where landlord admitted that it failed to serve copies of the notices on HPD in any manner whatsoever).

Further, where the PHA is the New York City Housing Authority (NYCHA), the Second Partial Consent Judgment issued in the case of Williams v. New York City Hous Auth (81 Civ 1801 [SDNY Feb 2, 1995]), sets forth numerous procedural steps for landlords to follow prior to and in the course of commencing eviction proceedings, including the manner of service of the required eviction notices on NYCHA.4 However, where, as here, the PHA is not NYCHA, there is no prescribed method for serving the PHA with a copy of any such “owner eviction notice”.

The decisions Respondent cites are inapposite because they involve defective pleadings and/or tenants with NYCHA Section 8 subsidies. For example, in 433 West Assocs v. Murdock (276 AD2d 360, 360, 715 NYS2d 6, 7-8 [1st Dep't 2000]), a holdover proceeding against a tenant with a NYCHA Section 8 subsidy, the court noted that the petition “failed to plead that it and the predicate termination notice were served on the New York City Housing Authority, as required by Federal consent decree and regulation,” citing Williams v. New York City Hous Auth, supra, and 24 CFR §982.310(e)(2)(ii).5 Similarly, the case of Homestead Equities v. Washington (176 Misc2d 459, 672 NYS2d 980 [Civ Ct Kings Co 1998]), also involved a holdover proceeding against a tenant with a NYCHA Section 8 subsidy and a pleading defect; the court denied the petitioner’s request for a default judgment and dismissed the proceeding because, inter alia, the petition failed to allege respondent’s Section 8 status or petitioner’s compliance with the applicable Federal regulations. In Taylor v. Shelton (2017 NYLJ LEXIS 1023 [Civ Ct Qns Co 2017]), while the issue was not a defective pleading, the court granted a motion to dismiss a holdover proceeding against a tenant with a NYCHA Section 8 subsidy where the landlord failed to prove that it had complied with the service requirements of the Williams Second Partial Consent Judgment. In Sam Burt Houses, Inc v. Smith (NYLJ 1202731567320 [Civ Ct Kings Co 2015]), a nonpayment proceeding against a tenant with a Section 8 subsidy administered by HPD, the court granted a motion to dismiss where the landlord admitted that it failed to plead the Section 8 status in the petition and to serve copies of the notices on HPD in any manner whatsoever.

Further, there is no requirement, as argued by Respondent, that proof of notice to the PHA be filed with the court in the same manner and at the same time as the filing of proof of service of the Notice of Petition and Petition on the respondent. The service and filing provisions of the RPAPL establish the criteria for obtaining personal jurisdiction over the respondent in an eviction proceeding, see generally Dolan v. Linnen (195 Misc2d 298, 753 NYS2d 682 [Civ Ct Richmond Co 2003]), and simply do not apply to the federally mandated notice which an owner must “give” to a PHA under 24 CFR §982.310(e)(2)(ii), a regulation which itself does not prescribe how the landlord is to “give” the requisite notice to the PHA or how the landlord is to prove that it did so.6

Accordingly, Respondent’s motion to dismiss is denied.

Discovery

In summary proceedings, a party requesting discovery must obtain leave of court, CPLR §408, and to obtain such leave, must demonstrate “ample need.” Antillean Holding Co v. Lindley (76 Misc2d 1044, 1047, 352 NYS2d 557 [Civ Ct NY Co 1973]). In determining whether a party has established such “ample need”, courts consider a number of factors, not all of which need to be present in every case, including:

whether the movant has asserted facts to establish a claim or defense;

whether there is a need to determine information directly related to the claim or defense;

whether the requested disclosure is carefully tailored and likely to clarify the disputed facts;

whether prejudice will result from granting leave to conduct discovery; and

whether any prejudice caused by granting a discovery request can be diminished by an order fashioned by the court for that purpose.

Petitioner alleges in its Notice of Termination that certain conduct described was “observed” without stating by whom and, regarding the allegations that do not refer to specific dates and times, without stating when. Respondent need not accept Petitioner’s assertions at face value, Smilow v. Ulrich (11 Misc3d 179, 186, 806 NYS2d 392, 398 [Civ Ct NY Co 2005]), and in fact has denied those assertions in her Third Affirmative Defense7, Verified Answer at 24 and 25, in which she “disputes each allegation in the Notice of Termination” and asserts that “the events described in the Notice of Termination did not occur.”

Respondent has established ample need for discovery to obtain information which is necessary to prepare her case against Petitioner’s claims of nuisance and objectionable behavior. See, e.g., 86 West Corp v. Singh (2007 NY Misc LEXIS 8544, 238 NYLJ 108 [Civ Ct NY Co 2007])(granting tenants’ discovery motion where landlord alleged that tenants harbored two pit bull terrier dogs which allegedly attacked and bit a resident’s dog, attempted to attack the dog of another resident, lunged at building residents in a menacing manner, and roamed freely in the building’s common areas). Petitioner’s argument that Respondent has not established “ample need” because “the conduct alleged herein all occurred inside the apartment,” Affirmation in Opposition at 21, is simply incorrect based on its own papers; Petitioner’s predicate notice describes numerous types of conduct that were allegedly observed in “hallways and stairwells” and “common areas” of the building. Respondent’s request is for information that will clarify the facts and directly impact her defense, thereby promoting efficiency in the trial process which is desired in a summary proceeding where an expeditious, yet efficient, disposition on the merits is sought.

Petitioner’s argument that Respondent’s motion for discovery should be denied because it is not supported by her sworn affidavit is unavailing; under CPLR §105[u], a verified pleading may be substituted for an affidavit in many circumstances where the latter is required. A & J Concrete Corp v. Arker (54 NY2d 870, 429 NE2d 412, 444 NYS2d 905 [1981]). Respondent’s Verified Answer contains a sworn denial of Petitioner’s factual claims against her and sufficiently supports the merits of her defense for purposes of her discovery motion.

A list of witnesses, deposition of Petitioner’s managing agent and the opportunity to review any records Petitioner has made, collected and/or kept of the alleged complaints about Respondent’s behavior which underlie this proceeding, are narrowly-tailored discovery requests which target the disputed facts.

CONCLUSION

Respondent’s motion is denied to the extent it seeks dismissal of the petition and granted to the extent it seeks discovery. Discovery shall be limited to the deposition of Petitioner’s managing agent, and the production at that deposition of the items requested in paragraphs “1″ through “3″ of the proposed Notice of Deposition.

Petitioner’s cross-motion to deem its affidavits of service on the DHCR duly filed is denied as moot, given the court’s finding above that there is no such filing requirement.

Upon completion of discovery, the parties may restore the case to the calendar by stipulation after securing a date from the Part Clerk. This constitutes the Decision and Order of this Court.

Dated: October 10, 2017Bronx, New York

Footnotes

[1] Petitioner bears the burden of proof on both the adequacy of its predicate notice and its claim that Respondent committed or permitted a nuisance; accordingly, Respondent could have addressed these issues in her Answer simply by denying those paragraphs of the Petition, without the use of "affirmative defenses", which are generally reserved for matters upon which the defendant or respondent has the burden of proof. As explained by the New York State Court of Appeals, "The burden of proof is on the party who tenders the issue, because he who affirms must produce the proof to sustain his affirmation. The one who denies may rest on the weakness of his opponent's evidence, but the one who affirms must rest on the strength of his own evidence. As to the allegations of the complaint, the burden of proof was upon the plaintiff, and as to the affirmative defense pleaded in the answer the burden of proof was upon the defendant." Merzbach v Mayor, etc, of New York (163 NY 16, 20-21, 57 NE 96, 97-98 [1900]); see also, e.g., HSBC Bank USA NA v Roumiantseva (39 Misc 3d 1239[A], 1239A, 975 NYS2d 709, 709 [Sup Ct Kings Co 2013], aff'd, 5 NYS3d 117, 130 AD3d 983 [2nd Dep't 2015]).

[2] While Respondent's motion to dismiss lacks any mention of its statutory basis, the court assumes from the arguments made that it is brought under CPLR R 3211(a)(7), failure to state a cause of action. The Court disregards this error, see CPLR § 2001, but notes that a citation to 24 CFR § 982.310(e)(2)(ii) does not provide the procedural vehicle for granting the relief requested.

[3] The parallel provisions of the "Tenancy Addendum" to the Housing Assistance Payments ("HAP") contract between Petitioner and the DHCR, ¶¶ 8(a) and 8(g)(2), simply track the language of the federal regulation and impose no greater requirements than does the federal regulation.

[4] One of the hallmarks of the Williams Second Partial Consent Judgment is its set of elaborate notice and certification procedures which landlords must strictly comply with. See, e.g., Alawlaqi v Kelly (175 Misc 2d 570, 571, 669 NYS2d 152, 153 [Civ Ct Kings Co 1997])(tenant's motion to dismiss holdover proceeding granted where, after NYCHA indicated it had no objection, landlord served the petition on NYCHA by regular mail only, and did not comply with the service requirements set forth in the Williams Consent Decree).

[5] Nevertheless, the Appellate Division upheld the Appellate Term's decision upholding the decision of Housing Court Judge Malatzky and found this pleading defect to be a non-jurisdictional defense which the tenant had waived and which therefore did not warrant vacatur of the judgment and dismissal of the petition.

[6] Regarding Respondent's point about the absence of proof of service of the Notice of Petition (as opposed to the Petition) on the DHCR, even if the court were to find that proof of service of the "owner eviction notice" on the DHCR must be filed with the court, which it does not, the Notice of Petition is not an "owner eviction notice" under 24 CFR § 982.310(e)(2)(i), which defines such notice as "a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction action." The "petition" used in Article 4 special proceedings, including summary eviction proceedings under Article 7 of the RPAPL, is the initial pleading, see CPLR § 402 ("Pleadings"); and compare CPLR § 3011. The "notice of petition", see CPLR § 403, is not a pleading; rather, it is one of the mechanisms (an order to show cause being the other; see CPLR § 403[d]), for providing notice of the commencement of the proceeding (the functional equivalent of a CPLR § 305 "summons" which provides notice of the commencement of an action). As explained by the Advisory Committee Notes to CPLR § 403, "A notice of petition accomplishes the purposes of both a summons and a notice of motion. As in the case of a summons, the special proceeding is commenced and jurisdiction is acquired over the respondent by service of the notice of petition. As in the case of a notice of motion, a notice of petition must fix the return date and be accompanied by any supporting affidavits. There is no demand for relief in the notice of petition, however, because the demand is made in the petition—the equivalent of the complaint in an action—which is to be served with the notice."

[7] Respondent's Second Affirmative Defense that the Petition fails to state a cause of action because the predicate notice lacks the requisite specificity does not support the request for discovery; if the court were to dismiss the proceeding on this ground, it would be because the notice is defective on its face. No motion to dismiss has been made on this ground, nor would the court grant such a motion in this case.

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet